Boston Baptist Social Union v. Trustees of Boston University

Decision Date01 April 1903
Citation66 N.E. 714,183 Mass. 202
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John C. & Roland Gray, for petitioners.

Harvey N. Shepard and Chas. H. Stebbins, for respondent.



This is a petition, brought under the provisions of Rev. Laws, c 182, § 11, to determine the validity of a certain incumbrance upon land of the petitioners. One of the petitioners holds its title as mortgagee; the other, as the owner of the equity. The Boston Baptist Social Union, the owner of the equity, which corporation we will call the 'petitioner,' has succeeded to the title of lot No 16 on a plan of lots upon Ashburton Place, formerly called 'Somerset Court,' owned by George W. Crockett prior to February 21, 1844. At that time the Mt. Vernon Congregational Society owned the lot easterly on the same street, now owned by the respondent, upon which a church edifice had been erected. On that day Crockett conveyed to one Adin Hall the lot in question, which is now the petitioner's, by a deed containing this restriction 'This conveyance is subject also to the restriction that the house to be erected upon said lot shall not be more than three stories high above the basement, and that the basement shall not be more than four feet above the level of the sidewalk of Somerset Court, and that the L part of said house shall be on the westerly line and shall not exceed in front twenty feet in height above the level of the yard, and shall not exceed twelve feet in depth from outside to outside of the walls.' Crockett owned no other land upon the street or in the vicinity. He has since deceased. On the same day the Mt. Vernon Congregational Society conveyed to Hall, for a consideration of $100, a strip of land 1 foot wide along the boundary line between the two lots, running back 40 feet from the line of the street, and gave a right to set steps upon its land, leading into the basement door of the house to be erected by Hall, and a right to place two windows in the attic, two in the basement, and one in the kitchen of said house. It also gave him a right to purchase a strip 12 feet in width, extending from the street back to the rear on the westerly side of its lot, on certain terms, in case its lot should be offered for sale. The restriction in question in this case was not mentioned or referred to in any writing, except the deed from Crockett to Hall. On March 26, 1844, Hall made a contract for the erection of a dwelling house on his lot, which was a substantial brick structure, erected according to the restrictions contained in the deed from Crockett. On June 27, 1892, Susan C. Warren and others, who then owned the lot now owned by the petitioner, made an indenture with the said Mt. Vernon Society, which was duly recored, wherein it was agreed that the restriction in question 'should be deemed and taken to have been imposed for the benefit of the land of the Mount Vernon Congregational Society.' The petitioner owns other land adjoining the lot referred to, and it desires to take down the house and erect for its use a large building, more than three stories high, covering this lot and its other lots. The question is whether it lawfully can do this, in view of the restriction.

We will assume, in favor of the respondent, that the restriction was imposed for the benefit of its lot, and that it is entitled to any advantage coming from it, and we will at once inquire what was the meaning of the restriction when it was imposed. Was it equivalent to the creation of an easement in favor of the respondent's lot, giving the owner a right to insist that no building should ever be erected on the petitioner's lot, different from that referred to in the restriction? Or was it a provision in reference to the particular house which the parties then had in mind, and which Hall proposed to erect, and which they assumed would be likely to determine the nature of the occupation and use of the property for a long time?

The reasons for Crockett's desire to impose a restriction for the benefit of the religious society do not appear. There is nothing...

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